[2013] KEHC 646 (KLR)
The court found that neither the appellant nor the respondent was in a position to adequately care for the children, as evidenced by the history of the children being under the care of their grandmother and the respondent's terminal illness. The court also considered the safety concerns raised regarding the...
Source-derived case information.
- Citation
- [2013] KEHC 646 (KLR)
- Parties
- Appellant: I A A; Respondent: A M N
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 36 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Applications and Review of Custody and Maintenance Orders Pending Appeal
- Outcome
- Earlier custody and maintenance orders reviewed; custody of all children placed with the respondent's mother; maintenance order vacated pending appeal.
- Legal Topics
- Child Custody, Child Maintenance, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
I A A
Appellant
A M N
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Applications and Review of Custody and Maintenance Orders Pending Appeal
Legal Issues
- 1 Whether the respondent has complied with the maintenance order of KShs.7,000 per month for the child.
- 2 Whether the environment at the appellant's place of abode is suitable for the minor's custody.
- 3 Whether the custody and maintenance orders should be reviewed in light of the welfare of the children and the death of the last born child.
Ratio Decidendi
The court found that neither the appellant nor the respondent was in a position to adequately care for the children, as evidenced by the history of the children being under the care of their grandmother and the respondent's terminal illness. The court also considered the safety concerns raised regarding the appellant's residence. In light of these circumstances and the best interests of the children, the court reviewed and set aside its earlier orders, placing all the children, including the last born, in the custody of their paternal grandmother. The maintenance order of KShs.7,000 per month was vacated, as the grandmother was already providing for the children's needs, including school...
Court Disposition
Earlier custody and maintenance orders reviewed; custody of all children placed with the respondent's mother; maintenance order vacated pending appeal.
Orders
- Custody of the last born child, L A, and the other two children, H A and N A, is placed with the respondent's mother.
- The children shall remain in the custody of their grandmother pending the hearing of the appeal.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL APPEAL NO. 36 OF 2013
(Appeal against the decision of Honourable Kadhi Shaban Issa Mohammed delivered on 3. 4.2013 in Kadhi’s Court at Kakamega in Divorce Cause No. 1 of 2013)
I A A …………………………………………………… APPELLANT
V E R S U S
A M N …………………………………………….. RESPONDENT
R U L I N G
The appellant filed her application dated 15. 7.2013 seeking to enforce an earlier order whereby the court ordered the respondent to pay KShs.7,000/= monthly as maintenance for the parties’ child. Mrs. Odoyo, counsel for the applicant submitted that the respondent has not complied with that order and has been disobeying the same. Counsel further submitted that the appellant has a proper place of abode.
Mr. Abok, counsel for the respondent filed an application dated 3. 7.2013 seeking stay of the execution of the orders made on 26. 6.2013. Counsel submitted that a report by the District Children’s officer indicate that where the appellant stays the environment is not safe for the minor. The place is still under construction. The respondent is terminally ill. Both the respondent and the appellant together with their children used to be taken care of by the respondent’s mother. There are two other children who are also being taken of by the respondent’s mother.
I have gone through the pleadings herein. On the 26. 6.2013 I did order that the last born child who was about two years old do stay with the appellant while the other children stay with the respondent. I also ordered the respondent to pay Ksh.7,000/= monthly to the appellant. On the 11. 11. 2013 an application was made by the respondent contending that the last born child had died while in Garissa. The application sought to stop any burial or to exhume the body in the event that the same had been buried. It is clear to me that both the appellant and the respondent may not be in a position to take care of the children. All along the children have been under the care of their grandmother who pays the school fees for the first two children. I do herby review my earlier orders of 26. 6.2013 and direct that the last born child, L Abe placed in the custody of the respondent’s mother who should also have the custody of the other two children namely H AandN A. Pending the hearing of the appeal the children shall be in the custody of their grandmother. The order of maintenance of KShs.7,000/= monthly is hereby vacated.
Delivered, dated and signed at Kakamega this 17th day of December 2013
SAID J. CHITEMBWE
J U D G E